CHAPTER 106

FORMERLY

SENATE BILL NO. 78

AN ACT TO AMEND TITLE 20 OF THE DELAWARE CODE RELATING TO THE DELAWARE NATIONAL GUARD.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend §102, Title 20, Delaware Code by deleting subsections (2) and (3) and adding a new subsection (2) thereto that shall read as follows:

“(2) ‘Unit’ shall mean any part of the Delaware National Guard designated a ‘unit’ by order of the Adjutant General.”

Section 2. Amend §104, Title 20, Delaware Code by deleting said section in its entirety and substituting in lieu thereof new §104 that shall read as follows:

Ҥ104. Rules and Regulations.

(a) In order to fulfill the purposes of this chapter, the Adjutant General may make and publish rules and regulations for the government, discipline and exercise of the Delaware National Guard.

(b) Such rules and regulations shall, so far as practicable, conform to the rules, regulations and statutes, of the Department of Defense, the Army, the Air Force, and the National Guard Bureau of the United States.

(c) When such rules and regulations have been promulgated and published by the Adjutant General, they shall have the force and effect of law.”

Section 3. Amend §108, Title 20, Delaware Code by designating the first paragraph of said section as subsection (a) and by designating the second paragraph of said section as subsection (c) and by adding new subsection (b) thereto that shall read as follows:

“(b) The Delaware National Guard may accept donations of money or property from any lawful source to improve its capabilities.”

Section 4. Amend §123, Title 20, Delaware Code by adding a new subsection (10) thereto that shall read as follows:

“(10) Promulgate rules and regulations for the governance and discipline of the Delaware National Guard.”

Section 5. Amend §132, Title 20, Delaware Code by deleting such section in its entirety.

Section 6. Amend §133, Title 20, Delaware Code by deleting subsection (a) and substituting a new subsection (a) that shall read as follows:

“(a) The mandatory retirement age for officers and enlisted members of the Delaware National Guard shall conform to the requirements of the active federal military.”

Section 7. Amend §133, Title 20, Delaware Code by deleting subsections (b) and (c) and relettering the present “(d)” as “(b)”.

Section 8. Amend §141, Title 20, Delaware Code by deleting said section in its entirety and substituting in lieu thereof a new §141 that shall read as follows:

Ҥ141. Property Accountability.

(a) Any officer, enlisted member, employee or agent of the Delaware National Guard who receives state or federal property or funds for military use shall be liable under the appropriate state and federal regulations for the proper safeguarding of said property or funds.

(b) No such person shall be discharged from responsibility for such property or funds until a proper accounting shall be made under appropriate regulations.

(c) The Adjutant General shall be empowered to enter suit against any person in the name of the state for the value of any such property as may have been damaged, lost destroyed, or not properly accounted for.”

Section 9. Amend §142(b), Title 20, Delaware Code by deleting the phrase “double the value” and substituting in lieu thereof the phrase “the current value”.

Section 10. Amend §151, Title 20, Delaware Code by deleting said section in its entirety and substituting in lieu thereof a new §151 that shall read as follows:

Ҥ151. Kinds of Courts-Martial; Procedures; Military Judges.

(a) Courts-Martial shall be of 3 kinds: general, special and summary. These courts shall be constituted like similar courts-martial of the Army and Air Force of the United States to the extent practicable.

(b) These courts-martial shall have the jurisdiction and powers as specified in regulations adopted and promulgated by the Adjutant General that shall conform as far as practicable to the Uniform Code of Military Justice (10 USC §801, et sequi) and the Manual for Courts-Martial of the United States.

(c) These courts shall use the forms and procedures as established for similar courts of the Army and Air Force of the United States, as adopted by regulation by the Adjutant General.

(d) Any charge shall be prosecuted under one or more articles of the Uniform Code of Military Justice, except as specifically excluded by regulation of the Adjutant General. These articles, and the adopting regulations of the Adjutant General shall be of the same force and effect in any proceeding before any court-martial of this state as if the same had been enacted at length in this section.

(e) The Adjutant General may designate one or more officers of the Delaware National Guard who is/are qualified members of the Judge Advocate General Corps as ‘Military Judge’ for state military justice purposes.

(f) The Adjutant General may appoint one or more officers of the Delaware National Guard who is/are qualified members of the Judge Advocate General Corps as ‘Military Judge for Court of Military Review’ for the purpose of reviewing the legal sufficiency of any court-martial and making a recommendation to the Adjutant General as to final action on the court-martial proceedings”.

Section 11. Amend §152, Title 20, Delaware Code by deleting such section in its entirety and substituting in lieu thereof a new Section 152 that shall read as follows:

Ҥ152. General courts-martial.

(a) The Adjutant General may convene a general court-martial by appropriate order.

(b) A general court-martial may impose a sentence of:

(1) A fine of not more than the member’s pay and allowances for 24 unit training assemblies;

(2) Forfeiture of the member’s pay and allowances for up to 24 unit training assemblies;

(3) A reprimand;

(4) Dismissal, dishonorable discharge, or a bad conduct discharge;

(5) Reduction of any noncommissioned officer or enlisted person to any rank; or

(6) Any combination of these punishments.

(c) Any sentence imposed by a general court-martial shall not become effective until approved by the Adjutant General.”

Section 12. Amend §153, Title 20, Delaware Code by striking said section in its entirety and substituting in lieu thereof a new §153 that shall read as follows:

Ҥ153. Special Courts-Martial.

(a) A commander of the rank of O-6 (Colonel), the commander of any other unit specifically designated by the Adjutant General, the Assistant Adjutant General for the Army National Guard, the Assistant Adjutant General for the Air National Guard and the Adjutant General may convene a special court-martial by appropriate order.

(b) A special court-martial may impose any sentence authorized for a general court-martial, including a bad-conduct discharge, except that fines and forfeiture are limited to 12 unit training assemblies.

(c) Any sentence imposed by a special court-martial shall not become effective until acted upon by the convening authority.

(d) A special court-martial shall have jurisdiction to try any member of the Delaware National Guard.”

Section 13. Amend §154, Title 20, Delaware Code by deleting said section in its entirety and substituting in lieu thereof a new §154 that shall read as follows:

Ҥ154. Summary Courts-Martial.

(a) A commander of any unit of the Delaware National Guard may be appropriate order convene a summary court-martial consisting of one officer.

(b) A summary court-martial may impose a sentence of:

(1) A fine of not more than the member’s pay and allowances for 4 unit training assemblies.

(2) Forfeiture of the member’s pay and allowances for up to 4 unit training assemblies.

(3) Reduction of any noncommissioned officer or enlisted person to any rank within the promotional authority of the appointing authority; or

(4) Any combination of these punishments.

(c) Any sentence imposed by a summary court-martial shall not become effective until acted upon by the convening authority.”

Section 14. Amend §155, Title 20, Delaware Code by deleting said section in its entirety and substituting in lieu thereof a new §155 that shall read as follows:

Ҥ155. Confinement.

(a) When not in federal service, a general or special court-martial may, instead of imposing a fine or forfeiture, sentence to confinement for one day for each unit training assembly.

(b) Any sentence to incarceration by a general or special court-martial shall not be executed until approved by the Adjutant General.

(c) Any sentence to incarceration by a general or special court-martial shall be required to be served only when the service member is on regular duty on annual training or has already been activated for state service under Subchapter V of this chapter.

(d) The Department of Correction shall receive and confine all military offenders committed to its custody by order of court-martial approved by the Adjutant General”.

Section 15. Amend Title 20, §157, Delaware Code by deleting it in its entirety and substituting in lieu thereof a new §157 that shall read as follows:

Ҥ157. Process

The President, Military Judge, or Summary Court Officer of any court-martial convened under this Title may:

(a) issue warrants, subpoenas or subpoenas duces tecum to compel appearance at a court-martial or to enforce the Court’s judgments.

(b) issue such other process as is necessary to exercise the Court’s jurisdiction.

(c) punish persons subject to the Delaware Code of Military Justice for contempt of court under the procedures of the Uniform Code of Military Justice; provided, however, that no punishment imposed may exceed that authorized for violation of 11 Del. C. §1271.

Any warrant or subpoena under this Section may be served or executed by the Sheriff, any constable, law enforcement officer, military policeman or provost marshal designated for this purpose”.

Section 16. Amend §158, Title 20, Delaware Code by deleting such section in its entirety and substituting in lieu thereof a new section 158 that shall read as follows:

Ҥ158. Disobedience of Subpoenas.

(a) Any member of the Delaware National Guard who fails to obey a subpoena issued by a court-martial shall be punished by the court-martial under the terms of the Uniform Code of Military Justice as adopted by regulation of the Delaware National Guard.

(b) Any person not a member of the Delaware National Guard who willfully fails to obey a subpoena issued by a court-martial shall be guilty of criminal contempt of court under the provisions of Title 11, Section 1271(3).”

Section 17. Amend §159, Title 20, Delaware Code by deleting said section in its entirety and by substituting in lieu thereof a new §159 that shall read as follows:

Ҥ159. Payment of Fines.

(a) Upon approval of the sentence of any court-martial to pay a fine by the court-martial convening authority, the fine so imposed shall be immediately due and payable to the Delaware National Guard Courts-Martial Fund, through the commander of the member’s unit to be forwarded to the Adjutant General.

(b) Any fine or forfeiture imposed by sentence of court-martial or non-judicial punishment collected by the Adjutant General shall be paid over to the Delaware National Guard Courts-Martial Fund.”

Section 18. Amend §160, Title 20 Delaware Code by deleting said section in its entirety.

Section 19. Amend §161, Title 20, Delaware code by striking such section in its entirety.

Section 20. Amend §171 Title 20 Delaware Code by striking said sections in their entirety and substituting in lieu thereof a new §171 that shall read as follows:

Ҥ171. Governor as Commander in Chief; Call Out of National Guard for State Duty.

(a) When the Governor has determined that it is in the best interest of the state, the Governor by order may:

(1) Call out any unit or units, member or members of the Delaware National Guard to serve in a state duty status to respond to any emergency situation.

(2) Call out any member or members of the Delaware National Guard to serve on state duty status to plan for any emergency.

(3) Call out any unit or units, member or members of the Delaware National Guard to serve on state duty to fulfill obligations under any interstate emergency agreements or compacts; and such troops may be employed within or outside of Delaware as required by the agreement or compact.

(4) Call out units or members of the Delaware National Guard for training or review as deemed appropriate subject to funding availability.

(b) The Governor shall serve as commander-in-chief of the Delaware National Guard when it is not in federal service.”

Section 21. Amend §174, Title 20, Delaware Code by deleting said section in its entirety.

Approved July 01,1999